Employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.

The NLRB is requesting amici briefs that address the following questions:

Should the Board reconsider the conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communication systems) for Section 7 purposes?

If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communication systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

Identify any other technological issues concerning email or other electronic communication systems that the Board should reconsider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The briefs are due on or before June 16, 2014 and cannot exceed 25 pages.

In Torres et al. v. Gristedes Operating Corp. et al., Case No. 11-4035 (July 9, 2013), the Second Circuit Court of Appeals held that a mayoral candidate, a supermarket owner, and an executive can be individually liable for settlement payments arising of a Fair Labor Standard Act class action.

In this case, the parties settled the class action. A class action is a discrimination case brought by a few plaintiffs on behalf of many employees. All of the members who agreed to be part of the class (the individuals who were discriminated against) receive their part of the settlement. In order for a fair disbursement, the Judge must adopt the settlement.

Under the settlement, the defendants agreed to pay $3.5 million to the class. However, the defendants defaulted on the payments. The judge’s order allowed the class to enforce the settlement. Defendants, who sought to change the settlement, stated that they were not bound by the settlement because they were not “employers.”

The Second Circuit Court of Appeals disagreed. The Court noted that the defendants exercised “operational control” that affected the class’ employment. For example, based of their decisions, the employees’ wages were affected. Because defendants were employers, defendants were bound by the settlement. Based on this decision, defendants now have to pay the owed money.

On October 1, 2013, the “Safe Act” becomes effective. The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault. The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.

The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault. The Safe Act covers:

The employee,

The employee’s child,

The employee’s parent,

The employee’s spouse,

The employee’s domestic partner, or

The employee’s civil union partner.

Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:

Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;

Seek legal assistance or remedies; or

Attend, participate in, or prepare for court proceedings.

If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.

In this case, the employer employed around 50,000 people. 75% of these employees were members of the Union, and 25% were not. In December 2002, the employer fired only Union employees. No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force. However, the employer cannot target a protected group (here, employees who associated themselves with the Union). The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case. The employer’s interest was to manage their economical situation. However, the laying off those Union employees had a minimal effect on their budget. In fact, these Union-only lay offs were not included in the Balanced Budget Plan. Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

This new definition may have an unknown impact in disability claims. The ABA Journal reports:

Although the AMA’s action was intended to affect medical treatment for the obese, “there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said partner Myra Creighton of Fisher & Phillips.

“It may be easier for employees to prove disability discrimination,” Creighton, who represents employers, told the newspaper. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.”

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law. EEOC charges alleging GINA violations have increased each year. Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009. Some of GINA’s regulations are as follows.

It is illegal for employers to discriminate against employees or applicants based on their genetic information.

Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.

GINA also applies to third parties. So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.

There are exceptions for voluntary health risk assessments. However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case. In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

The EEOC has issued a press release announcing a big victory for sexual harassment cases. These cases are often dismissed. For instance, according to EEOC 2011 statistics, the EEOC received 11,364 sexual harassment complaints. Of these, 53% were found to have no reasonable cause. This is an increase from 2010, where the percentage was of 50.1%. Since 1997, the percentage of cases dismissed has been in an upwards trend.

In the EEOC case against New Breed Logistics (Civil Action No. 2:10-cv-02696-STA-tmp), the jury awarded $177,094 in back pay, $486,000 in compensatory damages, and $850,000 in punitive damages.

Following the 7-day trial, the jury found that the warehouse supervisor subjected 3 temporary workers to unwelcome sexual touching and lewd, obscene and vulgar sexual remarks at the company’s Avaya Memphis area warehouse facility. Further, the jury found that a supervisor fired the three temp workers because they complained about the harassment.

The background is as follows. On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting. 76 Fed. Reg. 54,006. That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a). The final rule also declares that failure to post this notice is an unfair labor practice (ULP). In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA). This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP. The Court of Appeals found that the NLRB’s final rule did both. The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice. See 29 C.F.R. 104.210, 104.201. And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

Labor Employment Perspectives reports on a possible change that the Department of Labor (“DOL”) regarding classification of workers.

DOL suggests that it may push forward changes to the record keeping requirements under the Fair Labor Standards Act (“FLSA”) regulations. These changes will bring to the forefront issues relating to the misclassification of workers as independent workers when they are, in fact, employees.

On January 11, 2013, the DOL requested comments on a public survey designed to look at worker classification and determine the workers’ knowledge and understanding of employment laws and rules regarding basic laws and misclassification.

The DOL states,

The purpose of this study is to design and administer a new survey to collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification…..

The data collection effort with this group will gather information about workers’ employment and pay arrangements and will measure workers’ knowledge about their current job classification, and their knowledge about the rights and benefits associated with their job status.

As a backdrop, in 2010, DOL commissioned a study, which found that 10% to 30% of audited firms for state unemployment insurance had one or more of its employees misclassified as independent contractors. In the fall of 2010, the DOL proposed a change to the regulations regarding record keeping designed to “enhance the transparency and disclosure to workers of their status as the employer’s employee or some other status, such as an independent contractor…”

In other words, the regulations, if passed as suggested in 2010, would require employers to inform workers of whether they are (1) employees, (2) independent contractors, or (3) other status. Currently, the law does not require this.

Given their renewed interest, as evidenced by the public survey focused on worker classification, FMLA regulations may change.

The NLRB Office of General Counsel today announced that, based on specific commitments made by the United Food and Commercial Workers union, it is not necessary to decide the merits of an unfair labor practice charge filed by Wal-Mart against the UFCW.

In that charge, filed November 20, Wal-Mart alleged that the union violated the National Labor Relations Act by picketing at its stores for more than 30 days with the intent of seeking recognition for the union, without filing a petition for an election. The union, however, contended that the actions at the stores were not intended to gain union recognition, but to help employees in their efforts to have the employer commit to certain labor rights and standards.

The charge will be held in abeyance and dismissed in six months as long as the union complies with the commitments it has made. Under those commitments, described in an Advice Memorandum, the union disavowed any recognitional or organizational object and promised to maintain a disclaimer to that effect on Making Change for Wal-Mart and OUR Walmart websites. The union also promised, among other things, not to engage in any picketing or confrontational conduct which is the functional equivalent of picketing for 60 days.